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Title: Judicial policy in the common law of informed consent
Author: Earle, Murray
Awarding Body: University of Edinburgh
Current Institution: University of Edinburgh
Date of Award: 2000
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This thesis has entailed an investigation into the common law of informed consent to medical procedures among competent adults. This fails within the law of delict in Scotland and South Africa and within the law of torts in England, Canada, Australia and the United States of America. These six jurisdictions comprise the countries whose common law has been deconstructed by this thesis. This deconstruction was done with the aim of highlighting those points in the law of negligence, delict and/or torts at which policy is made or enforced in favour of the patient, the medical practitioner or indeed in favour of compromise. The thesis begins by considering the nature of the relationship between the doctor and the patient - the parties who will later become the defender/defendant and the pursuer/plaintiff in law. The thesis then follows two routes concurrently. The sequence of chapters has followed the judicial inquiry into informed consent. Accordingly, it begins with a choice of laws issue: into which category of law will the informed consent scenario fall. Having concluded that any action lies primarily within the law of negligence, the route of that particular judicial inquiry has been followed. Chapters which follow cover the issues of the standard of care, the breach of the duty and causation, before moving on to consider the weight given to medical and lay evidence at each stage of that judicial inquiry. At each stage the different judicial tests and standards of the jurisdictions have been compared and contrasted. Within each chapter, another route has been followed. This has been coined the geochronological route because through time the doctrine of informed consent has traversed the globe from America, through Canada, Australia and South Africa, but has not found sanctuary in either England or Scotland. This leads us to the penultimate chapter in which we pose the question 'Informed Consent: Quo Vadis?' This chapter concludes that there are several routes to the adoption of consent principles in the United Kingdom, but none of these will lead to the adoption of the doctrine of informed consent. This is because of the security of the judicial tests in the Bolam and Hunter v Hanley cases. From a comparison throughout the thesis to alternative standards and tests outwith the United Kingdom, the concluding chapter comes out in support of these tests as able to reflect patients' interests because together they constitute a floating benchmark. This is possible precisely because of the operation of judicial policy within the common law of informed consent.
Supervisor: Not available Sponsor: Not available
Qualification Name: Thesis (Ph.D.) Qualification Level: Doctoral
EThOS ID:  DOI: Not available